Is 42 days' detention really necessary?

I remain unconvinced but the Government is planning concessions

Joshua Rozenberg, Legal Editor

11:54PM BST 28 May 2008

It would be a great pity if the Government's plans to permit 42 days' pre-trial detention for suspected terrorists became the next test of the Prime Minister's waning authority. The issue is far too important to be treated as a political football.

And yet, as I reported last week, we can expect ministers to table significant amendments before MPs vote on the proposals in a couple of weeks' time. Any concessions should be made for reasons of principle rather than to buy off a backbench revolt.

Tony McNulty, the Home Office minister, hinted at his plans during the Bill's committee stage on May 6. He had clearly expected opposition MPs to propose amendments of their own – and seemed quite disappointed when they did not.

Dominic Grieve, QC, for the Tories, explained that it would be wrong to tinker with the Bill's details when the minister had not made out a case for extending pre-charge detention in general. But I suspect he saw no reason to make things any easier for the Government.

So what concessions will be offered by Mr McNulty? To understand that, we need to look at the Bill as it now stands.

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Schedule 2 of the Counter-Terrorism Bill would amend a provision in the Terrorism Act 2000 that permits extended detention of suspected terrorists. When the Act was passed, the maximum period for which a terrorist suspect could be detained without charge was seven days. This was extended to 14 days in 2003 and to 28 days in 2006, subject to annual renewal by Parliament.

In non-terrorist cases, four days is the longest possible period – with anything over 36 hours needing approval from a magistrates' court. The original purpose of detention under our common-law system was not to permit questioning by police but to ensure that defendants were brought before a court.

If the Government's proposals become law, detention for up to 42 days will be permitted under what the Bill calls a "reserve power". This will not become available until the Home Secretary makes an order bringing it into effect.

The Home Secretary's order does not require prior Parliamentary approval. However, it cannot be made until the minister has received a report from the Director of Public Prosecutions and a chief constable – or their equivalents in other parts of the United Kingdom. Those responsible for the report must tell the Home Secretary why they believe it will be necessary to detain a suspect beyond 28 days. The permitted reasons are wide enough to cover, for example, needing more time to crack an encrypted computer.

Once the Home Secretary's order has been made, the reserve power covers all suspected terrorists who are currently being detained and anyone who is subsequently detained while the power is still available. The power lasts for 30 days, renewable up to a maximum of 60 days with Parliamentary approval. It permits prosecutors to ask specially designated circuit judges for permission to detain suspected terrorists between 28 and 42 days for periods of a week at a time.

There are other Parliamentary safeguards in the Bill. "As soon as practicable" after a judge has authorised a suspect's detention beyond 28 days, Parliament must be given certain details, such as the length and place of detention. But MPs and peers will never be told the name of the detained person or any information that might prejudice a prosecution. And, by then, there would be very little that Parliament could do if it thought the Home Secretary's order should not have been made in the first place. A rather more useful safeguard in the Bill as currently drafted makes it clear that the reserve power should not be triggered unless the Home Secretary has received information indicating that a terrorist investigation "gives rise to an exceptional operational need".

Within two days of making the reserve power available – or "as soon as is practicable" afterwards – the Home Secretary must tell Parliament she is satisfied that its availability is compatible with the Human Rights Convention.

That should not be a problem, the Home Office believes. True, the convention does specify that a person must be brought "promptly" before a judge – but terrorist suspects already appear before a district judge within two days of arrest.

The Home Secretary's written statement to Parliament must also say she is satisfied that the reserve power is urgently needed. But should Parliament have to take her word for it?

It is in these areas that the Government seems keen to make concessions. Opposition MPs had told Mr McNulty that requiring the Home Secretary to lay a written statement was no more than a "sop" to Parliamentary scrutiny. Very well then, replied the minister: bring forward amendments and we will consider them.

"I ask in all seriousness," Mr McNulty said in the committee this month, "where are the amendments that address the points made about the Parliamentary scrutiny process being fatuous and not working?"

MPs would not be discussing individual defendants, he reminded them.

"It is perfectly proper and not beyond the wit of Parliament, however constituted, that it can debate the general security threat, the progress of investigation, the police numbers involved, the number of suspects detained, the outline of the plot –what, why and when – the number of countries involved, if there are any, the number of exigencies, whether the Home Secretary's decision was properly founded, if she had indeed received the police and DPP report in the first place, other information received and other broad discussions," said Mr McNulty, who has clearly been schooled in the John Prescott style of public speaking.

And what about the courts? "It has been suggested to me privately," the minister disclosed, "that if there is no parliamentary oversight and scrutiny, the trigger should more properly include a judicial element."

So might a judge decide whether there was an exceptional operational need for the power to be used – perhaps after the matter had already been considered by Parliament?

If we are to have a reserve power to detain suspects for six weeks, then it should certainly not be routinely available and renewable. And if the test is to be "urgent operational need", then it is right for Parliament to decide whether this test has been satisfied – perhaps by the discovery of a multiple terrorist plot or following a devastating attack. The Government is thinking of allowing a debate within seven days, which seems about right.

But I have misgivings about this "judicial element" that Mr McNulty is considering. How can a judge decide whether an operational need is "exceptional"? What would the court compare it with? Is it really to be imagined that a judge would reject the evidence of police or prosecutors on this point? The judge's role strikes me as no more than a figleaf or, to borrow the minister's term, a "sop".

More fundamentally, do we really need 42 days in the first place? Like Dominic Grieve, I remain unconvinced.

Let me therefore suggest a further compromise to the minister. Allow Parliament – though not the courts – to trigger the new power. But don't stop there. Specify that this entire section of the Act will not even come into force without a resolution from both Houses of Parliament. Then wait and see if it's needed.